No. 16-588 The Supreme Court the United States
_________
NEIL PARROTT, AL.,
Appellants,
LINDA LAMONE AND DAVID MCMANUS, JR.,
_________
Appellees. Appeal from the United States District
Court for the District Maryland
_________
BRIEF OPPOSING APPELLEES
MOTION AFFIRM
_________
Robert Popper
Counsel Record
Chris Fedeli
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Appellants
December 20, 2016
LEGAL PRINTERS
LLC,
Washington 202-747-2400 legalprinters.com
TABLE CONTENTS
TABLE AUTHORITIES ......................................
INTRODUCTION .......................................................1 Gerrymandering Claim Need Not
Proceed Under the Equal Protection
Clause Allege Partisan Injury ...................1
II.
Appellees Alternately Misapprehend
And Ignore the Relationship Between
Malapportionment and
Gerrymandering .............................................4
III. Appellees Misstate the Compactness
Standard Described Appellants ................7
IV. the District Court Found, Appellants
Injury Concrete and Particularized...........9
Appellants Have Alleged Connection
Between Extreme Noncompactness and
Gerrymandering ...........................................11
CONCLUSION ..........................................................14
TABLE AUTHORITIES
FEDERAL CASES
Anderson Celebrezze, 460 U.S. 780 (1983) ............10
Ashcroft Iqbal, 556 U.S. 662 (2009) ................11,
Burns Richardson, 384 U.S. (1966) ...................6
Davis Bandemer,
478 U.S. 109 (1986)...............................................2
Evenwel Abbott, 136 Ct. 1120 (2016) ..................6
FEC Akins, 524 U.S. (1998) .............................10
Fletcher Lamone,
831 Supp. 887 (D. Md. 2011) .....................12
Harman Forssenius, 380 U.S. 528 (1965),
aff 235 Supp. (E.D. Va. 1964) .................10
Reynolds Sims, 377 U.S. 533 (1964) .......................3
Shapiro McManus, 136 Ct. 450 (2015)...............1
Shaw Reno, 509 U.S. 630 (1993).............................8
U.S. Dept. Commerce Montana,
503 U.S. 442 (1992)...............................................6
Vieth Jubelirer, 541 U.S. 267 (2004) ......................3
iii
CONSTITUTIONAL PROVISIONS
U.S. CONST. art. cl. .........................................4
U.S. CONST. amend XIV, .......................................4
U.S. CONST. amend XXIV .........................................10
COURT RULES
SUP. CT. 37.2 ...........................................................8
OTHER AUTHORITIES
Black Law Dictionary (7th ed. 1999) .......................3
INTRODUCTION
Nowhere their Motion Affirm Mot. Aff. Appellees dispute Appellants claim that this
appeal raises the most important open question
the law redistricting: What are the constitutional
moorings and the judicial standards for adjudicating
claims excessive partisan gerrymandering?
Jurisdictional Statement J.S. 36.
Appellees
argue instead that Appellants answer this
question inadequate.
However, Appellees
attempts show this are misguided, because, set
forth below, they mostly argue against positions that
Appellants not hold. set forth the
Jurisdictional Statement, this appeal raises
substantial issue warranting the Court plenary
review.1 The Court should note probable jurisdiction
and set this case for oral argument. Gerrymandering Claim Need Not
Proceed Under the Equal Protection
Clause Allege Partisan Injury.
Appellees argue length that claim
gerrymandering must established particular
way. Appellees view, the essence any
gerrymandering claim the contention that
complainants are members cohesive political
Even Appellees acknowledged the district court that the
issues this case are substantial. After the Court issued its
decision Shapiro McManus, 136 Ct. 450 (2015),
clarifying when claim substantial for the purposes
convening three-judge court, Appellees withdrew their
objections three-judge court. See J.S.
group that has suffered unlawful discrimination.
Mot. Aff. Accordingly, Appellees demand that
such claim provide means detect excessive
partisanship redistricting. Id. 10. This should
require showing discriminatory intent, which
has always been core requirement Equal
Protection analysis. Id. 12. Appellees also insist
that discriminatory effect must alleged and
proven. Id. 13. This would require allegations
pertaining the demographic composition
Maryland congressional districts, including specific
facts any allegedly unfair concentration
dispersion voters belonging any particular
group. Id. 13-14. Appellees argue that
political gerrymandering claim does not cease
require evidence discrimination simply because
plaintiff fails plead it. Id. 13. strange for Appellees insist that
gerrymandering claim must proceed the way they
describe when that approach has never succeeded
any court. More the point, there simply
basis for Appellees assertion that claim
gerrymandering must allege injury arising out
partisan affiliation and must under the Equal
Protection Clause. Appellants have made clear,
they are not asserting violation the Equal
Protection Clause and are not proceeding under the
jurisprudence Davis Bandemer, 478 U.S. 109
(1986).
J.S.
Thus, they need not plead
discriminatory intent, invidious classification, injury their capacities members political party,
any the other elements such claims. support their position, Appellees cite
definition political gerrymandering the use
electoral districts, often highly irregular shape,
give one political party unfair advantage
diluting the opposition voting strength. Mot. Aff. citing Vieth Jubelirer, 541 U.S. 267, 272 (2004), citing Black Law Dictionary 696 (7th ed.
1999).
While this uncontroversial definition
gerrymandering does describe its basic purpose,
does not pretend specify the necessary elements constitutional claim. Nor does the fact that
gerrymandering always involves partisan motives
mean that partisanship must the focus any
constitutional challenge.2 Gerrymandering might
conflict with the Constitution any number
ways. Appellants explained the Jurisdictional
Statement, courts have long been aware that
gerrymandering constitutes form selfaggrandizement which legislators acquire the
power choose legislators. J.S. 17-18. this
injury that the basis for Appellants constitutional
challenge. analogy the one person, one vote cases again
instructive. The creation and preservation malapportioned
districts unquestionably had partisan, sectional, and other
political implications. J.S. 23-24; see Reynolds Sims, 377
U.S. 533, 567 (1964) legislative apportionment
controversies are generally viewed involving urban-rural
conflicts But plaintiffs alleging that their congressional
districts were malapportioned did not have plead prove
that they were members particular party that they were
rural urban voters.
There ground for asserting that
gerrymandering claims may only proceed under the
Equal Protection Clause. The substantial question
raised this appeal whether gerrymandering
claim lies instead under Article and the Due
Process Clause.
II. Appellees Alternately Misapprehend
And Ignore the Relationship Between
Malapportionment and
Gerrymandering.
Appellees agree with the district court argument
that nothing [the malapportionment] cases
suggests that the Court should apply [them]
claims not asserting unequal population. Mot. Aff. citing J.S. App. 12a.
Appellees claim that
population inequality the representational injury other words the only injury proscribed
Article Id. This assertion simply begs the
question, rather, the substantial question
presented Appellants. The Court has never held
that Article applies circumstances other
than where districts are malapportioned. The whole
point Appellants constitutional argument,
moreover, that the one person, one vote standard
must understood part larger principle that
protects voters from extreme, mechanical predations legislators. this sense, claim asserting
unequal population involves the same kind injury claim gerrymandering.
Following the district court, Appellees also argue
that the one person, one vote cases not support constitutional injury based the mechanical
manipulation districts, because those same cases
mandate such manipulation where necessary
achieve the required population equality. Mot. Aff.
6-7, citing J.S. App. 12a. This facile argument
misstates the injury this case. Appellants not
merely allege that they were harmed because
districts were manipulated. Rather, the district
court accurately put elsewhere, Appellants assert
that the Plan harms all Maryland voters because
mechanically manipulates Maryland congressional
districts manner that transfers the power
select representatives from the people the Maryland
General Assembly. J.S. App. (emphasis added).
Appellees simply ignore the second half this
statement. sure, equal population
requirement will mandate that districts
manipulated accomplish this purpose, but doing ultimately transfers the power select legislators
back the people. the absence equal
population requirement that the power select
legislators lost the people, and acquired
instead those who create and maintain districts.
Indeed, this characteristic, wherein legislators are
empowered the expense voters, common both malapportionment and gerrymandering.
Aside from the foregoing points, Appellees
motion simply fails engage Appellants arguments the connections between gerrymandering and
malapportionment. Appellees say nothing about the
point
that
the
Court
malapportionment
jurisprudence does not mandate the equalization
any particular population.
See J.S. 21, citing
Evenwel Abbott, 136 Ct. 1120, 1132 (2016)
(allowing use total population); Burns
Richardson, 384 U.S. 73, 93-94 (1966) (allowing use registered voters). Appellees not address the
related point that the one person, one vote
standard must understood, not abstract rule
requiring any particular notion equality, but
pragmatic restraint legislators ability serve
their own interests. J.S. 22; see also id. 11, citing
U.S. Dept. Commerce Montana, 503 U.S. 442,
464 (1992) (malapportionment due law
assigning representatives states was acceptable
where did not favor either party). Appellees not
discuss the argument that the Court early
malapportionment
cases
reflected
this
understanding emphasizing the partisan
advantage derived from underpopulated districts.
J.S. 23-24. Finally, Appellees make mention
Appellants
demonstration
that
extreme
noncompactness can used circumvent any
restraints that the one person, one vote rule
imposes partisan mapmakers. J.S. 24-26. This
last fact particularly important, because shows
that gerrymandering is, literal sense, type
malapportionment.
Appellees fail fully address the issues raised the Jurisdictional Statement concerning the
relation
between
malapportionment
and
gerrymandering.
Appellants have raised
substantial question warranting the Court plenary
review.
III. Appellees Misstate the Compactness
Standard Described Appellants.
Appellees mischaracterize the compactness
standard described Appellants, often ways
anticipated the Jurisdictional Statement.
Appellees badly misstate this standard when they
argue that would invalidate plan that not
compact might i.e., compact
practicable, measured the Polsby-Popper
scale. Mot. Aff. 13. But Appellants not seek
require such maximum compactness. the
contrary, they described requirement that
congressional districts could not fall below some
minimal level compactness, prevent the
worst kinds gerrymandering. J.S. 27.
similar vein, Appellees assert that Appellants
believe that the [C]onstitution violated where
more compact districts could have been drawn while
still respecting arbitrarily chosen set
traditional districting principles. Mot. Aff. 10-11.
Not true. The standard Appellants describe does not
apply whenever more compact districts could have
been drawn, but only extreme cases
noncompactness. the same time, realistically
accommodates the many cross-cutting interests that
affect redistricting even, certain extent,
degree partisan gerrymandering. See discussion J.S. 27.
Appellees stress that compactness not
constitutionally required. Mot. Aff. 11, citing, e.g.,
Shaw Reno, 509 U.S. 630 (1993).3 This true, but
Appellants have never maintained otherwise. the
course describing all the things that Appellants
standard not, they made clear that not
constitutional requirement that voting districts
compact, and does not create confer
constitutional right reside compact district.
J.S. 28. Rather, the standard would proscribe only
extreme noncompactness (id.), which not the
same establishing constitutional requirement
that all districts compact.4
Nothing Shaw would prevent the application
compactness requirement bar egregious gerrymanders like
Maryland Third Congressional District. Shaw, the
majority discussed compactness and other districting criteria
objective factors that might constitute proof the racial
gerrymandering issue that case. 509 U.S. 647. The
Court pronouncement that these criteria are not
constitutionally required was made, and must interpreted, that context, and not fair reading that opinion
suggest that rejected any rule requiring some minimal level compactness check extreme gerrymandering.
Attorneys for plaintiffs alleging First Amendment
gerrymandering claims Wisconsin and North Carolina have
submitted amici brief also criticizing Appellants proposed
compactness standard. Motion for Leave File Amici Curiae
Brief and Brief, dated December 2016. This brief flawed.
First, was not timely filed. Am. Cur. Br. (first page,
admitting lateness); see SUP. CT. 37.2(a) (time file amicus
brief). Second, misleadingly labeled brief support neither party, although asks the Court summarily
dispose this appeal and argues against the compactness
standard. Am. Cur. Br. and passim. And third, not
helpful the Court. inaccurate, when claims [t]here
are alternative maps. Id. compare J.S. App. 33a-37a,
42a (alternative map). misapprehends the compactness
standard being unable account for unusual political
IV. the District Court Found, Appellants
Injury Concrete and Particularized.
Appellees argue that Appellants failure allege
harm partisans means that they are left asserting
only the interest voters generally, which not injury themselves that concrete and
particularized. Mot. Aff. Appellees maintain
that this independent reason, aside from the
lack cognizable legal right, why Appellants lack
standing.
This argument contradicts explicit finding
the contrary the district court. Noting that
Appellants allege they are asserting harm that all
Maryland voters endure, the district court observed
that the deprivation the right vote can
constitute injury fact notwithstanding that the
injury widespread. J.S. App. 9a. The district
court concluded that this pleading stage, this
harm adequately concrete and particularized.
J.S. App. 10a.
This finding was surely correct. The Court has
held that non-justiciable, generalized interest
exists where harm not only widely shared, but
also abstract and indefinite nature for
example, harm the common concern for obedience
boundaries compliance with federal laws. Id. 15-17;
compare J.S. 18. Finally, the bulk extended factual
argument about compactness, the consideration which
inappropriate appeal from motion dismiss. Id. 1225. law. FEC Akins, 524 U.S. 11, (1998)
(citation omitted). contrast, where
harm concrete, though widely shared, the
Court has found injury fact.
This
conclusion seems particularly obvious where large numbers individuals suffer the
same common-law injury (say, widespread
mass tort), where large numbers voters
suffer interference with voting rights
conferred law.
Id. 24.
There are many situations the context
voting rights where harm concrete, though widely
shared. For example, unconstitutional poll tax
could confer standing every voter state. See
Harman Forssenius, 380 U.S. 528, 533-34 (1965)
(state poll tax held violate the Twenty-Fourth
Amendment), aff 235 Supp. 66, (E.D. Va.
1964) (three-judge court) (plaintiffs alleged that they
were citizens the United States and the State Virginia having the requisite residence vote,
each suing for himself and others class similarly
situated. see U.S. CONST. amend. XXIV. Similarly, administrative burden voting evaluated under
Anderson Celebrezze, 460 U.S. 780, 789 (1983),
could confer standing every voter. The fact that
these interests are widely shared does not make
the injuries less concrete. the same way,
although every voter Maryland harmed when
the power select representatives transferred
state legislators, the voters claims are sufficiently
concrete and particularized confer Article III
standing.
Appellants Have Alleged Connection
Between Extreme Noncompactness and
Gerrymandering.
Appellees accuse Appellants making the
conclusory assertion that non-compact district
necessarily gerrymandered district and argue
that this does not meet the pleading standard with
regard proving discriminatory intent. Mot. Aff. citing Ashcroft Iqbal, 556 U.S. 662 (2009).
Aside from the fact, explained above, that Appellants
are not trying prove discriminatory intent,
Appellees claim simply incorrect.
The complaint alleges detail the causal
connection between noncompact districts and
gerrymandering. The complaint explains that [i]n
partisan gerrymander, the party charge
redistricting creates districts which the
opposing party enjoys supermajority, and
greater number districts which one own party
has smaller, but significant and winning,
majority. J.S. App. 24a. obtain electoral
advantage, mapmakers need arrange both their
own partisans and those their electoral opponents
This formulation again misstates Appellants position.
Appellants maintain (and would offer expert testimony
show) that extremely noncompact districts are almost
invariably the hallmark self-interested gerrymandering,
which why they should proscribed ensure that
representatives are selected the people. particular district configurations. J.S. App. 27a.
But voters not choose where live suit
the purposes legislators trying draw
gerrymandered districts.
Id.
This why
legislators must distort district boundaries create
districts that contain the mix voters that best
achieves partisan goals. Id.
The complaint then applies this account
partisan gerrymandering Maryland wildly
deformed congressional district plan, alleging that
its exceedingly non-compact districts were caused gerrymandering. Id. alleges that Maryland
gerrymandered district plan produces split counties,
county fragments, and split precincts. J.S. App.
28a. The complaint amply documents the extent
which these districts are noncompact. J.S. App. 32a,
34a, 36a. The complaint also refers public and
judicial commentary acknowledging that political
gerrymandering accounts for the extraordinary
shapes Maryland congressional districts. The
complaint cites Washington Post editorial opining
that political motivations caused Maryland district
map sliced, diced, shuffled and shattered,
making districts resemble studies cubism. J.S.
App. 20a-21a. The complaint cites statements from
Fletcher Lamone, 831 Supp. 887, 903-04, 905
(D. Md. 2011), describing the mapmakers political
purpose creating Maryland plan. J.S. App. 22a.
The complaint points out that Maryland
district plan has been the subject near constant
litigation. J.S. App. 21a. The complaint then draws intuitive, factual inference that further supports
the connection between gerrymandering and the
need create non-compact districts Those who
drew and approved Maryland bizarre-looking
districts would not have invited multiple lawsuits for
gerrymandering, and would not have held the State public ridicule account those districts
appearance, the desired partisan result could have
been achieved some other way. J.S. App. 27a.
The foregoing allegations easily meet the
requirement facial plausibility, that they
plead factual content that allows the court draw
the reasonable inference that the defendant liable
for the misconduct alleged. Iqbal, 556 U.S. 678
(citation omitted).
These allegations should
presumed true for the purposes the motion
dismiss, and Appellants ultimately should have the
opportunity prove them trial.
CONCLUSION
Appellants respectfully request that the Court
deny Appellees motion affirm, note probable
jurisdiction, and set this case for oral argument.
Respectfully submitted,
Robert Popper
Counsel Record
Chris Fedeli
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Appellants
December 20, 2016